20. The Use of Force and the International Legal Order

2018 ◽  
Author(s):  
Christine Gray
Keyword(s):  
Civil Wars ◽  
Use Of Force ◽  
Legal Order ◽  
Terrorist Attacks ◽  
Un Peacekeeping ◽  
International Legal Order ◽  
The Law ◽  
The Right ◽  
Self Defence

This chapter examines the law on the use of force. It discusses the UN Charter scheme; the Prohibition of the Use of Force in Article 2(4) of the UN Charter; intervention, civil wars, and invitation; self-defence; the use of force under Chapter VII of the UN Charter; UN peacekeeping; and regional action under Chapter VIII of the UN Charter. The UN Charter provisions on the use of force by States, Article 2(4) on the prohibition of force, and Article 51 on self-defence, have all caused fundamental divisions between States. There is disagreement as to whether the prohibition on force should be interpreted strictly or whether it allows humanitarian intervention, as in Kosovo. There is also disagreement over the scope of the right of self-defence. The response to the 9/11 terrorist attacks has led to a fundamental reappraisal of the law in this area.

scholarly journals The Right of Intervention for the Protection of Nationals : Reassessing the Doctrinal Debate

2005 ◽  
Vol 30 (2) ◽  
pp. 441-493
Author(s):  
Jean Raby
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Legal Order ◽  
Practical Reasons ◽  
The Past ◽  
International Legal Order ◽  
The Subject ◽  
The Right ◽  
International Law Commission ◽  
Self Defence

The legality of a forceful intervention by a state to protect its nationals has been the subject of a continuing controversy over the past 15 years. Many see it as an unlawful use of force prohibited by the Charter of the United Nations, others see it as a lawful exercice of a self-standing right recognized under contemporary international law, some finally claim it falls under the scope of self-defence. The author proposes not to restate that debate, but more to reassess it, examining and challenging some of the arguments raised on both sides of the question. Within that debate, it will be concluded that the international legal order does indeed recognize the validity of the use of force for such a purpose : if the avenue of self-defence is rejected, for conceptual as well as practical reasons, the right of intervention to protect nationals is indeed, for the author, part of the comtemporary international legal order. Then, the author wishes to broaden the debate and proposes another option, which has not been explored by scholars and publicists but which is found more satisfactory than any other approach : intervention to protect nationals can be justified under international law because of the existence, in a particular case, of a "state of necessity" as defined by the International Law Commission.

Self-Defence in Response to Attacks by Non-state Actors in the Light of Recent State Practice: A Step Forward?

2010 ◽  
Vol 23 (1) ◽  
pp. 183-208 ◽  
Author(s):  
RAPHAËL VAN STEENBERGHE
Keyword(s):  
Use Of Force ◽  
Prima Facie ◽  
Operation Enduring Freedom ◽  
Armed Attack ◽  
The Us ◽  
State Practice ◽  
State Actors ◽  
The Law ◽  
The Right ◽  
Self Defence

AbstractThis article analyses the recent state practice in which the right of self-defence has been invoked in order to justify the use of force in response to attacks by non-state actors. The main purpose of this analysis is to determine whether the law of self-defence has evolved through this practice. It is submitted that the latter confirms the tendency, evidenced by the US operation ‘Enduring Freedom’ in Afghanistan in 2001, towards allowing states to respond in self-defence to private armed attacks, that is, attacks which are committed by non-state actors only. The article also aims to shed some light on other fundamental conditions of the law of self-defence which played a significant role in the legal assessment of the recent state practice. It is argued in this respect that this practice confirms that any armed attack must reach some level of gravity – which may be assessed by accumulating minor uses of force – in order to trigger the right of self-defence, and that proportionality of the action taken in self-defence may be assessed in quantitative terms, but only as a means of making a prima facie judgement about the necessity of this action.

The Prohibition of the Use of Force in Arbitrations and Fact-Finding Reports

2016 ◽  
Author(s):  
Vaios Koutroulis
Keyword(s):  
International Relations ◽  
Use Of Force ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
Commissions Of Inquiry ◽  
State Actors ◽  
The Law ◽  
Fact Finding ◽  
The Right ◽  
Self Defence

This chapter examines the approach used by arbitral tribunals and commissions of inquiry or fact-finding missions with respect to rules governing the use of force after the adoption of the UN Charter in 1945, with emphasis on the right to self-defence and the conditions relating to its exercise. It assesses the legal significance of arbitral awards and fact-finding reports and considers how they have interpreted and applied jus contra bellum—the prohibition of the use of force in international relations and its exceptions. The chapter focuses on two significant arbitration precedents: the Eritrea Ethiopia Claims Commission and an arbitral tribunal constituted under Annex VII to the UN Convention on the Law of the Sea (UNCLOS). Finally, it discusses questions relating to the threshold for the application of jus contra bellum rules, namely Articles 2(4) and 51 of the UN Charter, and whether such rules are applicable to non-state actors.

The Law of War and its Many Distinctions

2019 ◽  
pp. 201-250
Author(s):  
George P. Fletcher
Keyword(s):  
Rome Statute ◽  
General Structure ◽  
War Crimes ◽  
International Perspective ◽  
Legal Order ◽  
Law Of War ◽  
International Legal Order ◽  
Police Action ◽  
The Law ◽  
The Mind

This chapter focuses on the law of war and its many distinctions. The supreme distinction in this book is between lawful and unlawful. However, in the law of war, the distinctions multiply beyond control. Whether troops fighting abroad constitutes war is itself a disputed question; there has been a tendency in recent years to use “armed conflict” or “police action.” For the purposes of analyzing the Rome Statute and, in particular, Article 8 on war crimes, one has to assume an international perspective. Most countries in the international legal order are not democracies, and the internal allocation of power is not relevant to whether they violate Article 8. The complexity of Article 8 challenges the mind, with at least 50 distinct offenses. The chapter then elaborates on the perspectives necessary to grasp the general structure of war crimes in the international legal order.

3 Direct Military Assistance on Request During Civil Wars

2020 ◽  
Author(s):  
De Wet Erika
Keyword(s):  
Civil War ◽  
Civil Wars ◽  
Military Intervention ◽  
Use Of Force ◽  
Organizational Practice ◽  
Military Assistance ◽  
Post Cold War ◽  
Current State ◽  
State Practice ◽  
The Right

This chapter examines whether the right to self-determination in international law prevents military intervention on the side of the recognized government during a civil war. Post-Cold War state and organizational practice does not convincingly support the claim that direct military assistance at the request of a recognized government is prohibited during a civil war, otherwise known as a ‘non-international armed conflict’ (NIAC). Attempts to explain current state practice by means of counter-terrorism and counter-intervention exceptions to a general prohibition of such assistance also is not grounded in state or organizational practice, nor are such exceptions viable in practice. Instead, state and organizational practice seems to confirm the right of recognized governments to request military assistance from third states, also during civil wars/NIACs, as long as they retain their recognized, de jure status. The potential lack of ‘representativeness’ in such a situation does not seem to limit the extent to which the de jure government can act on behalf of the state (and its people) in matters pertaining to the use of force.

Part III Security Governance Tools, Ch.45 The Use of Force

2021 ◽  
Author(s):  
Wilmshurst Elizabeth
Keyword(s):  
United Nations ◽  
Use Of Force ◽  
Collective Responsibility ◽  
Legal Framework ◽  
Common Interest ◽  
Security Threats ◽  
Governance Tools ◽  
International Legal Order ◽  
The United Nations ◽  
The Law

This chapter describes the collective security system established by the United Nations Charter and focuses on the use of force. The vision of the founders of the United Nations—‘determined to save succeeding generations from the scourge of war’—was to make the preservation of international peace a collective responsibility and to locate that responsibility in the United Nations and, in particular, the United Nations Security Council. States were obliged to refrain from the use of force in their international relations, and there would be no resort to armed force except ‘in the common interest’, as declared in the preamble to the Charter. However, contemporary security threats such as global terrorism and the proliferation of weapons of mass destruction give rise to questions about whether the law is ‘sufficient’. The chapter then outlines the international legal framework and discusses some of the difficulties in interpreting or applying aspects of the law in the context of recent challenges to the international legal order. It considers whether this legal framework is still appropriate to deal with current security threats and whether the efficacy of the law is still recognized in the practice of States.

Self-Defence and Israel in International Law: A Reappraisal

1976 ◽  
Vol 11 (4) ◽  
pp. 516-562 ◽  
Author(s):  
Barry Feinstein
Keyword(s):  
International Law ◽  
The State ◽  
Self Help ◽  
The Law ◽  
The Right ◽  
Self Defence

Dean Acheson frankly reconfirmed the right of self-preservation, when he asserted, “…law simply does not deal with … questions of ultimate power—power that comes close to the sources of sovereignty…. No law can destroy the state creating the law. The survival of states is not a matter of law”. It is beyond the law.Given the existence of man's elementary loyalty to autonomous states, the necessity for using force springs from the need of states to depend fundamentally on self-help in order to guarantee their survival and welfare. This search for security in a system of politics without government, forces the state to be dependent upon military self-help.

The Principles

2016 ◽  
Author(s):  
Casey-Maslen Stuart ◽  
Clapham Andrew ◽  
Giacca Gilles ◽  
Parker Sarah
Keyword(s):  
Control Systems ◽  
Use Of Force ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Political Independence ◽  
Domestic Jurisdiction ◽  
The Right ◽  
Article 5 ◽  
National Control ◽  
Self Defence

This chapter discusses the eight principles of the ATT. Article 5(1) requires parties to implement the treaty while bearing in mind the principles set out. The principles cover the following issues: the right of states to self-defence; the settlement of international disputes by peaceful means; refraining from the threat or use of force against the territorial integrity or political independence of any state; non-intervention in matters essentially within the domestic jurisdiction of a state; respecting and ensuring respect for international humanitarian law and human rights; the responsibility of states to regulate international trade in conventional arms and prevent diversion and to establish national control systems; respect for the interests of states to acquire, produce, export, import, and transfer conventional arms; and implementation of the ATT in a consistent, objective, and non-discriminatory manner.

Part 2 The Post-Cold War Era (1990–2000), 42 The US Airstrike Against the Iraqi Intelligence Headquarters—1993

2018 ◽  
Author(s):  
Starski Paulina
Keyword(s):  
Cold War ◽  
Use Of Force ◽  
Post Cold War ◽  
The Us ◽  
State Practice ◽  
Observable State ◽  
The Right ◽  
President Bush ◽  
Intelligence Service ◽  
Self Defence

This contribution analyses the normative implications of the US raid against the headquarters of the Iraqi Intelligence Service in 1993 in reaction to a foiled assassination attempt against former President Bush. It examines the legality of the operation, its precedential value and its evolutive potential regarding the regime on the ius contra bellum and specifically the right to self-defence. After dissecting the multiple contentious dimensions of the US claim of justification, the article concludes that the raid constituted an illegal ‘armed reprisal’. In light of observable state practice, its precedent-setting nature should not be overstated. However, albeit qualified as an ‘one-off incident’ the US raid did not leave the prohibition on the use of force and the contemporary discourse surrounding it untouched. Hence, it appears essential to demystify its frequently asserted evolutive potential particularly regarding the temporal limitations of Article 51 UN Charter to which this article is dedicated.

Sign in / Sign up

Export Citation Format

Share Document